IN A LITTLE over three months’ time, on 25 May, the European Union’s General Data Protection Regulation (GDPR) will come into force – and it’s set to shake the privacy status quo in Europe to its foundations.
You’ve probably heard of GDPR – it first came into being nearly two years ago for starters. That meant that businesses throughout the EU had two years to update their data protection procedures and laws to fall in line with the new regulation.
As you might imagine, the new regulation has been causing substantial stress for companies across the union, especially those dealing in wholesale recording of personal data as a matter of routine.
And as you might also expect, the government of each EU nation has to fall in line with what’s coming. GDPR is an EU regulation, not a directive. It’s not a request, and it’s not a guideline. It’s mandatory.
What does it mean? Well, fundamentally it means a unified, modern-day (the previous EU legislation, from 1995, on the subject predates the internet as we know it) approach to data across the union – a fit-for-purpose data protection regulation for the online age. In practice, it means that companies, including those based outside the EU but processing personal data from within) will have to be exceptionally careful with how they collect and share a person’s data. It also means that the individual will have vastly strengthened rights regarding how their personal data is requested and used.
The punishment for those companies in breach of GDPR post-25 May? A maximum fine of €20 million or up to 4% of their turnover for the previous year, whichever is higher. Ouch.
So why is the Irish government currently sprinting through the legislative process in order to have a new data protection act in place come May? More importantly, why is so much of what’s being suggested for the Irish act apparently at odds with the EU regulation it is supposed to give effect to? Those eye-watering fines mentioned above for example? If the government has its way it won’t be paying them – it wants to make itself exempt from any penalties for breaching GDPR.
All of which begs the question: why is the Irish state trying to get away with non-compliance with one of the most anticipated EU regulations of modern times when the public at large has no say in the matter?
The Irish bill
The first question is easily answered – a new data protection act has to be put in place by GDPR’s go-live date to bring Irish law in line with its EU superior.
The freshly published data protection bill spent a deal of time being kicked around Oireachtas committees in its pre-legislative format. Most Irish data protection experts consistently cited its compatibility issues regarding GDPR at that stage, with the Data Protection Commissioner herself Helen Dixon suggesting a lack of comfort with the idea of state bodies being rendered exempt from those hefty GDPR fines within Irish law. Nevertheless, that proviso is still contained in the proposed document.
Now the would-be legislation has been officially brought before the Oireachtas in the form of a 132-page bill, with Minister for Justice Charlie Flanagan introducing it to the Seanad on 30 January. “In a nutshell, this legislation will introduce stronger rules on data protection,” the minister said by way of introduction.
Scarcely two weeks later the bill is firmly ensconced in the Seanad’s committee stage of deliberation. Whirlwind stuff, but then there is a rather pressing deadline. At present 92 amendments have been proposed to it as things stand. Only one has been voted upon.
Some of the marquee things it seeks to bring about you may already have heard of – a reduction of the digital age of consent from 16 to 13 (something that has caused no end of controversy itself, but is within the discretionary limits allowed for by GDPR), and the abolition of the current role of Data Protection Commissioner in favour of a new Data Protection Commission, with up to three commissioners in place, to handle a heavier workload.
Here are some other things the bill would make law should it be voted through the Oireachtas:
- As mentioned above, section 136 of the bill stipulates that the European Commission can only impose a fine on an Irish state body for breaching GDPR where that body is in competition with a private enterprise
- Section 54 seeks to restrict the data rights of individuals regarding GDPR when the state deems that things like cabinet confidentiality (and many, many others) are at stake
- Likewise mitigating circumstances are cited throughout the document for reasons why the state can process a person’s data contrary to GDPR where the ‘public interest’ is in question
- The new Data Protection Commission would have the discretionary option to not investigate a complaint made to it, should it deem such a course of action appropriate
- Constitutional Irish law can supersede EU law with regard to processing a citizen’s data (ie, make what the EU says is illegal, legal)
- The existing 30-year-old Data Protection Act isn’t entirely repealed, but still remains law for issues like national security
Such instances running seemingly contrary to the essence of GDPR are ten-a-penny throughout the bill.
Any prospective legislation is necessarily dense and doesn’t make for light reading – nevertheless Irish data protection experts have been universal in their condemnation of the bill as it stands.
Intellectual property solicitor and data protection expert Fred Logue says the documnt in its current guise “has the potential to kill data protection enforcement in Ireland and will take years of litigation to fix”.
The Irish Council for Civil Liberties says that the bill “impacts fundamental human rights, and on first reading gives rise to serious concerns across a broad range of privacy rights issues”.
The ICCL believes that proper analysis and consideration of these issues is required and we are concerned at the apparent haste with which the Government is pushing through important legislation in a highly sensitive area.
Independent Senator Alice Mary Higgins has tabled over 30 amendments to the new bill, which she describes as being “less interested in effective implementation of GDPR than in limiting its impact”.
“The bill proposes a number of wide, often vague, exemptions which allow the State and public bodies to override an individual’s right to privacy and data protection and, outrageously, it also seeks to exempt public bodies from fines when they break the rules. No financial consequences is a recipe for disaster,” she said.
Issues of data protection touch so many areas of our lives that it is vital we get this legislation right. That’s why I’ll be fighting for those amendments as this bill continues through the Seanad.
Meanwhile, perhaps most damningly, leading Irish law firm McCann Fitzgerald (like most large corporate entities, a company not overly accustomed to delivering stinging rebukes in public) summarised the newly-published bill with the phrase “further work to be done”:
Considering that the application dates of the GDPR and the Law Enforcement Data Protection Directive are less than four months away and that the draft bill is overdue, many organisations will be disappointed that what has been published is not closer to a version that could be finalised.
Why is this happening?
So, why has the government chosen to approach such a modern-day issue as data protection in such a seemingly contrarian way? This is the first time data protection has been dealt with on an EU-wide level in generations remember. Given our wholesale dependence upon being in the union’s good books with Brexit in the offing, why is the state attempting to go it alone in the face of a regulation we should be beholden to?
TheJournal.ie queried the Department of Justice as to the thinking behind the exemptions included in the bill, the immunity from fines in particular, and as to whether the minister is aware of the criticism of the bill stemming from the ranks of the data protection and privacy professions.
“This legislation is being introduced by the Government and there is a clear obligation on State bodies to abide by the law,” a spokesperson for the department said in response.
The Data Protection Bill 2018 gives further effect to GDPR in a limited number of areas in which flexibility is permitted. Article 83 of the GDPR sets out that it is a matter for member states to decide on whether administrative fines should be imposed on public authorities and bodies (this is indeed the case – Article 83 states that “each member state may lay down the rules on whether and to what extent administrative fines may be imposed on public authorities and bodies established in that member state”).
“There is a distinction to be drawn between public and private sectors – unlike its impact on a private company, a fine on a public sector body may have the effect of reducing the funds available to it to carry out its statutory functions for the public,” they added.
It has been suggested that the government perhaps doesn’t feel that Ireland is adequately prepared for GDPR, and wishes to immunise itself from the massive fines that could entail, ie if fines eat up a department’s budget the money won’t be there to fix the issues that caused the fine in the first place.
With controversial state schemes like the Public Services Card in place, the legislative and lawful basis of which has been called repeatedly into question, the state may be feeling particularly vulnerable to the hefty fines that GDPR brings with it.
Likewise, responsibility for data protection has bounced back and forth between the Department of the Taoiseach and the Department of Justice (which has itself had a difficult time of it on the PR front in the last six years) in recent times, only settling as part of Justice’s brief once more upon Leo Varadkar’s ascension to the leadership of the country. A new department equals a new approach.
Another train of thought is that the new bill is the work of officialdom which doesn’t much like the restrictions being put in place by the GDPR, and has instead drafted the law it thinks GDPR might have been.
In the wake of the criticism the bill faced in its pre-legislative form, a slimmed-down version with less controversial overtones might be what you would expect the Department of Justice to have produced. That has not been the case – all the anomalies previously cited have made it through to the final bill intact.
Of course the bill may not make it through the Dáil entirely in its current guise – the government doesn’t have a working majority, so much will depend on how the opposition, particularly Fianna Fáil, reacts to the bill’s more controversial provisions. But the timeframe is extremely tight to get this right. One way or the other Ireland needs to have legislation in place come 25 May.
What are the pitfalls?
In defying the EU, what risks are Ireland running? Quite a few.
When GDPR comes into force, the vast majority of the EU states will be running entirely in compliance with the new regulation, with us as the exception. Anything that clashes with the new regime will bring uncertainty with it.
At present, with so many social media giants like Facebook based in Ireland, all litigation regarding those massive companies is processed here. Defying GDPR means legal uncertainty. And that could (and probably will) see an explosion in data protection lawsuits here.
The risk exists that Ireland will be a far less attractive prospect to multinationals due to the sheer lack of clarity regarding what is legal and what isn’t when it comes to the processing of data. Economically, flouting GDPR is a huge hazard, not least with the financial tornado that is Brexit looming, and one the government seems determined to brave.
From an Irish citizen’s point of view, the proposed bill creates substantial ‘wiggle room’ regarding whole swathes of the heightened privacy rights afforded by GDPR, those which the EU now deems to be fundamental human rights.
So if we are to defy the new regulation, it seems far-fetched that the EU will take the snub lightly.
With no clarity as to which takes precedence here, Irish or EU law, you can expect the courts to be busy.
The possibility is also there that, in becoming the black sheep of the European privacy family, the stigma is one the country would struggle to bear. For, while data protection may not be the hottest of potatoes here, on mainland Europe (particularly in Germany, Austria, and France) it is the marquee issue, one treated with the utmost seriousness.
A struggle to get this bill through the Oireachtas might just be the beginning of the government’s privacy problems.